Petition for Writ of Certiorari — PMCM TV, LLC, Petitioner v. Federal Communications Commission, et al.

Supreme Court briefNov 30, 2018

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APPENDIX

TABLE OF CONTENTS

Appendix A Judgment in the United States Court

of Appeals for the District of Columbia

Circuit

(June 20, 2018) . . . . . . . . . . . . . . . App. 1

Appendix B Memorandum Opinion and Order

Before the Federal Communications

Commission, Washington, D.C. 20554

(September 15, 2017) . . . . . . . . . . App. 9

Appendix C Order Denying Petition for Panel

Rehearing in the United States Court

of Appeals for the District of Columbia

Circuit

(September 5, 2018) . . . . . . . . . . App. 86

Appendix D Order Denying Petition for Rehearing

En Banc in the United States Court of

Appeals for the District of Columbia

Circuit

(September 5, 2018) . . . . . . . . . . App. 88

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 17-1209

September Term, 2017

[Filed June 20, 2018]

__________________________

PMCM TV, LLC,

)

PETITIONER

)

FEDERAL COMMUNICATIONS )

)

COMMISSION AND UNITED

STATES OF AMERICA, U.S.

)

DEPARTMENT OF JUSTICE

)

ANTITRUST DIVISION,

)

RESPONDENTS )

)

CBS CORPORATION, ET AL., )

INTERVENORS )

__________________________ )

Consolidated with 17-1210

_______

On Petitions for Review of Orders of

the Federal Communications Commission

_______

Before: GRIFFITH, WILKINS and KATSAS, Circuit

Judges.

App. 2

JUDGMENT

These cases were considered on petitions for review

from the Federal Communications Commission, and on

the briefs and oral arguments of the parties. The Court

has afforded the issues full consideration and has

determined that they do not warrant a published

opinion. See Fed. R. App. P. 36; D.C. Cir. R. 36(d). It is

ORDERED and ADJUDGED that the petitions for

review of the orders of the Federal Communications

Commission be DENIED.

Petitioner PMCM TV, LLC obtained a license from

the Federal Communications Commission to operate

television station WJLP in northern New Jersey on

radio-frequency channel 3, the same radio-frequency

channel used by PMCM’s predecessor station in

Nevada. However, the FCC assigned WJLP virtual

channel 33, the channel to which viewers tune their

televisions in order to watch WJLP. The FCC did this

to protect the “Channel 3” brand identity of intervenor

broadcasters that already used virtual channel 3 in

service areas that overlapped with that of WJLP. For

similar reasons, the FCC refused to require cable

operators to carry WJLP on cable television as

“Channel 3.” PMCM seeks review of both decisions.

Before the transition from analog to digital

broadcasting, television stations broadcast on radio

frequency bands with a fixed correspondence to the

channel numbers shown on viewers’ televisions. During

the transition, many stations changed their radio

frequencies from VHF to UHF, which was better suited

for digital broadcasting. Nonetheless, to preserve brand

identities, stations sought to retain the same “virtual”

App. 3

channel numbers—what viewers would select on their

televisions in order to tune in.

To facilitate this transition, the Advanced

Television Systems Committee, a non-profit

organization, developed a voluntary Program and

System Information Protocol (“PSIP Standard”) for

assigning virtual channel numbers. The PSIP Standard

allowed broadcasters to switch from VHF to UHF radio

frequencies, while still retaining virtual channel

numbers that match their old analog channel numbers.

Under the PSIP Standard, a broadcaster received a

two-number virtual channel. The first number, called

the “major” channel number, was the same as the

station’s original analog channel number and was used

to identify all of the broadcaster’s programming. The

second number, called the “minor” channel number,

identified one program service of the broadcaster. For

example, an analog channel 4, known locally as

“Channel 4,” but with a new digital radio-frequency

channel 52, would have its programming appear to

viewers as carried on channels 4.1, 4.2, and so forth.

The FCC has incorporated the 2006 version of the

PSIP Standard into its own regulations. See In re

Second Periodic Review of the Commission’s Rules and

Policies Affecting the Conversion to Digital Television,

Report and Order, 19 FCC Rcd. 18279, 18343–47

¶¶ 149–53 (2004); 47 C.F.R. § 73.682(d).

In 2014, the FCC allowed WJLP to broadcast on

radio-frequency channel 3 from an antenna in New

York City. The FCC did not assign WJLP a virtual

channel number at that time, so PMCM began using

virtual channel 3. Intervenor Meredith Corporation

App. 4

objected because the service area of its Hartford,

Connecticut station WSFB overlaps with the service

area of WJLP. Before the digital transition, WSFB

operated on radio-frequency channel 3; now, it

broadcasts on radio-frequency channel 33 while using

virtual channel 3 to preserve its brand identity. In

response to Meredith’s objections, PMCM proposed to

partition virtual channel 3, with Meredith using virtual

channels 3.1 through 3.9 and PMCM using virtual

channels 3.10 and above. Intervenor CBS Corporation,

which operates a Philadelphia-based television station

on radio-frequency channel 26 and virtual channel 3,

raised objections similar to those of Meredith. The FCC

rejected PMCM’s proposal and assigned WJLP virtual

channel 33.

PMCM argues that the FCC misinterpreted the

relevant PSIP Standard and arbitrarily assigned

virtual channel 33 to WJLP. We reject both of these

arguments.

The FCC’s interpretation of the PSIP Standard, as

incorporated into its regulations, “controls unless

plainly erroneous or inconsistent with the regulation.”

Press Commc’ns, LLC v. FCC, 875 F.3d 1117, 1121

(D.C. Cir. 2017) (quoting Auer v. Robbins, 519 U.S. 452,

461 (1997)). The relevant portion of the PSIP Standard

provides:

If, after the [digital] transition, a previously

used [analog radio-frequency] channel in a

market is assigned to a newly-licensed [digital

TV] broadcaster in that market, the newlylicensed [digital TV] broadcaster shall use, as

his major_channel_number, the number of the

[digital TV radio-frequency] channel originally

App. 5

allocated to the previous [analog] licensee of the

assigned channel.

PSIP Standard, Annex B.1(4).

This case largely turns on the term “market” as

used in Annex B.1(4). The FCC interpreted “market” to

mean service area—the geographic area reached by a

station’s over-the-air signal. In re Request for

Declaratory Ruling by Meredith Corp. and Alternative

PSIP Proposal by PMCM TV, LLC for WJLP (Formerly

KVNV(TV)), Middletown Township, New Jersey,

Memorandum Opinion and Order, 32 FCC Rcd. 7229,

7243 ¶ 28 (2017) (“PSIP Order”). That placed WJLP

and WSFB in the same “market,” thus making WJLP

subject to Annex B.1(4). Accordingly, because WJLP

was newly-licensed in the greater-New York area to

broadcast on radio-frequency channel 3, which was the

previously used analog radio-frequency channel of

WSFB, WJLP was assigned virtual channel 33, the

digital radio-frequency channel of WSFB. PMCM

contends that “market” refers not to service area but to

the narrower Neilson Designated Market Area

(“DMA”). On that understanding, according to PMCM,

WJLP would be in a different “market” from that of

WSFB; so, Annex B.1(4) would not apply, and virtual

channel 3 would be available.

The FCC reasonably interpreted “market” to mean

service area rather than DMA. The FCC’s

interpretation is consistent with the terms of Annex

B.1(4), which does not specify whether “market” means

service area or DMA, and it furthers the regulatory

objective of preserving historic brand identities

developed by existing broadcasters. Moreover, PMCM

would not prevail even under its proposed

App. 6

interpretation of “market” to mean DMA. As the FCC

further explained, the signal of WSFB extends into

Fairfield County, Connecticut, which is part of the New

York DMA. PSIP Order ¶ 35. Under either

interpretation, WSFB “previously used” analog radiofrequency channel 3 in the relevant “market,” thus

triggering Annex B.1(4).

The FCC did not act arbitrarily in applying Annex

B.1(4) according to its terms. PMCM objects that the

FCC has failed to prohibit many other duplicative

assignments of major channel numbers in similar

circumstances. However, as the FCC explained, its

consistent approach has been to resolve channelplacement disputes when and only when one of the

involved stations objects. PSIP Order ¶¶ 5, 39. We have

no basis for setting aside that perfectly reasonable

approach. Moreover, although PMCM understandably

wants “proximity” to “major network-affiliated

stations” with low virtual channel numbers (Br. 46), it

was perfectly rational for the FCC to allow incumbent

stations to protect brand identities built up over many

years of programming and advertising. Finally, PMCM

claims to have suffered various harms from the FCC’s

assignment to it of virtual channel 33 in particular.

Putting aside the seemingly mandatory rule that

PMCM “shall use” that virtual channel, the FCC

persuasively explained that the alleged harms were

largely unsubstantiated and easily fixable. PSIP Order

¶¶ 19, 43.

PMCM also challenges the FCC’s refusal to require

cable providers to carry WJLP on cable channel 3. The

parties agree that WJLP is entitled to “must-carry”

privileges on cable networks, but, once again, they

App. 7

disagree about channel positioning. The relevant

statute provides:

Each signal carried in fulfillment of the carriage

obligations of a cable operator under this section

shall be carried on the cable system channel

number on which the local commercial television

station is broadcast over the air, or on the

channel on which it was carried on [historical

dates or on the channel] as is mutually agreed

upon by the station and the cable operator. Any

dispute regarding the positioning of a local

commercial television station shall be resolved

by the Commission.

47 U.S.C. § 534(b)(6) (emphasis added).

The FCC concluded that the “over the air” channel

refers to the virtual channel number rather than the

radio-frequency channel number. In re PMCM TV, LLC

v. RCN Telecom Services, LLC, Memorandum Opinion

and Order, 32 FCC Rcd. 7200, 7207–08 ¶ 13 (2017).

Despite PMCM’s objections, we agree with the FCC

that the “over the air” channel means the channel as

perceived by viewers—the single analog channel before

the digital transition, and the virtual channel

afterward. As a textual matter, the virtual channel

number is encoded in the signal that the station

“broadcast[s] over the air.” Moreover, the FCC’s

interpretation best harmonizes with the purpose of the

must-carry requirement—to ensure that viewers have

clear and easy access to local programming. See, e.g.,

Turner Broad. Sys. v. FCC, 520 U.S. 180, 191–93

(1997).

App. 8

Finally, PMCM argues that the FCC violated the

Spectrum Act by reassigning its virtual channel

number from 3 to 33, but that Act concerns the

reallocation of radio frequencies, not the allocation of

virtual channels. See 47 U.S.C. § 1452(g)(1)(A).

The Clerk is directed to withhold issuance of the

mandate herein until seven days after resolution of any

timely petition for rehearing or petition for rehearing

en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41.

PER CURIAM

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Ken Meadows

Deputy Clerk

App. 9

APPENDIX B

Federal Communications Commission

FCC 17-117

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

[Filed September 15, 2017]

CSR-8917-M

MB Docket No. 16-25

___________________________________

In the Matter of

)

PMCM TV, LLC, Licensee of WJLP, )

Middletown Township, New Jersey

)

RCN Telecom Services, LLC

)

___________________________________ )

CSR-8918-M

MB Docket No. 16-26

___________________________________

PMCM TV, LLC, Licensee of WJLP, )

Middletown Township, New Jersey

)

Service Electric Cable TV of New

)

Jersey Inc., d/b/a Service Electric

)

App. 10

Broadband Cable

)

___________________________________ )

CSR-8919-M

MB Docket No. 16-27

___________________________________

PMCM TV, LLC, Licensee of WJLP, )

Middletown Township, New Jersey

)

Time Warner Cable Inc.

)

___________________________________ )

MEMORANDUM OPINION AND ORDER

Adopted: September 14, 2017

Released: September 15, 2017

By the Commission:

I. INTRODUCTION

1. On May 17, 2016, the Media Bureau (Bureau)

issued three Memorandum Opinion and Orders

(MO&Os) denying must carry complaints filed by

PMCM TV, LLC (PMCM), licensee of commercial

broadcast television station WJLP, Middletown

Township, New Jersey, seeking carriage on cable

channel 3, the channel number corresponding to the

station’s RF channel assignment, on cable systems

operated by RCN Telecom Services, LLC (RCN),

Service Electric Cable TV of New Jersey Inc., d/b/a

Service Electric Broadband Cable (SECTV-NJ), and

Time Warner Cable Inc. (TWC) in the New York, New

App. 11

York designated market area (New York DMA).1 The

Commission now has before it a Consolidated

Application for Review of the Bureau’s MO&Os filed by

PMCM on June 10, 2016.2

2. The Commission also has before it an

Application for Review filed by PMCM on August 25,

2014,3 seeking review of a Letter Order issued by the

Bureau on July 25, 2014, which deferred

implementation of PMCM’s must carry request and

channel position election for WJLP, which sought

carriage on cable channel 3, until 90 days after a final

decision on the appropriate Program System and

Information Protocol (PSIP) virtual channel for the

station,4 and an Application for Review filed by PMCM

PMCM TV, LLC v. RCN Telecom Services, LLC, Memorandum

Opinion and Order, 31 FCC Rcd 5224 (MB 2016) (PMCM v. RCN);

PMCM TV, LLC v. Service Electric Cable TV of New Jersey Inc.,

d/b/a Service Electric Broadband Cable, Memorandum Opinion

and Order, 31 FCC Rcd 5230 (MB 2016) (PMCM v. SECTV-NJ);

PMCM TV, LLC v. Time Warner Cable Inc., Memorandum Opinion

and Order, 31 FCC Rcd 5236 (MB 2016) (PMCM v. TWC).

PMCM Consolidated Application for Review, MB Docket Nos. 1625, 16-26, 16-27 (filed June 10, 2016), https://ecfsapi.fcc.gov/

file/60002238704.pdf (PMCM Consolidated Application for

Review).

PMCM Application for Review (filed Aug. 25, 2014) (Deferral

Application for Review).

Requests to Defer Mandatory Carriage of WJLP (Formerly

KVNV(TV)), Middletown Township, New Jersey, Letter Order, 29

FCC Rcd 9102 (MB 2014) (Deferral Letter Order). PSIP consists of

data transmitted along with a station’s DTV signal which tells

DTV receivers information about the station and what is being

App. 12

on July 6, 2015,5 seeking review of a Letter Order

issued by the Bureau on June 5, 2015, which reinstated

PMCM’s must carry request and channel position

election for WJLP.6 For the reasons that follow, we

deny in part and dismiss in part PMCM’s Consolidated

Application for Review and dismiss as moot PMCM’s

Applications for Review of the Bureau’s Deferral Letter

Order and Reinstatement Letter Order.

II. BACKGROUND

3. Pursuant to Section 614 of the Communications

Act of 1934, as amended (Act), and the implementing

rules adopted by the Commission, commercial

television broadcast stations, such as WJLP, are

entitled to assert mandatory carriage rights on cable

broadcast and provides a method for receivers to identify a DTV

station and determine how the receiver can tune to it. PSIP

enables receivers to link a station’s digital RF channel with its

“virtual” or major channel number – the number viewers see on

their channel receiver when they view a DTV station over the air

– regardless of the actual RF channel used for digital transmission.

Second Periodic Review of the Commission’s Rules and Policies

Affecting the Conversion to Digital Television, Report and Order,

19 FCC Rcd 18279, 18344-46, paras. 149-53 (2004) (Second

Periodic Review). For purposes of the PSIP standard, the terms

“virtual” channel and “major” channel are used interchangeably.

PMCM Application for Review (filed July 6, 2015) (Reinstatement

Application for Review).

Requests to Defer Mandatory Carriage of WJLP (Formerly

KVNV(TV)), Middletown Township, New Jersey, Letter Order, 30

FCC Rcd 6116 (MB 2015) (Reinstatement Letter Order).

App. 13

systems located within their market.7 A station’s

market for this purpose is its DMA, as defined by the

Nielsen Company.8 The Commission has clarified that

“broadcast stations may assert their carriage and

channel positioning rights at any time so long as they

have not elected retransmission consent.”9 Section 614

of the Act and Section 76.57 of the Commission’s rules

provide commercial television stations with four

possible channel positioning options to which they may

assert their rights.10 Specifically, a commercial

broadcast station may elect to be carried on: (1) the

channel number on which the station is broadcast over

the air; (2) the channel number on which the station

Implementation of the Cable Television Consumer Protection and

Competition Act of 1992, Broadcast Signal Carriage Issues, Report

and Order, 8 FCC Rcd 2965, 2975-77, paras. 41-46 (1993); 47

U.S.C. § 534. The Commission subsequently extended mandatory

carriage rights to digital television stations and amended its rules

accordingly. Carriage of Digital Television Broadcast Signals, First

Report and Order, 16 FCC Rcd 2598, 2606, paras. 15-16, 2610,

para. 28 (2001) (First Report and Order); 47 CFR § 76.64(f)(4).

Section 614(h)(1)(C) of the Act provides that a station’s market

shall be determined by the Commission by regulation or order

using, where available, commercial publications which delineate

television markets based on viewing patterns. 47 U.S.C.

§ 534(h)(1)(C). Section 76.55(e)(2) of the Commission’s rules

specifies that a commercial broadcast television station’s market

is its DMA as determined by Nielsen Media Research. 47 CFR

§ 76.55(e)(2).

Implementation of the Cable Television Consumer Protection and

Competition Act of 1992, Broadcast Signal Carriage Issues,

Clarification Order, 8 FCC Rcd. 4142, 4144, para. 15 (1993).

47 U.S.C. § 534; 47 CFR § 76.57.

App. 14

was carried on July 19, 1985; (3) the channel number

on which the station was carried on January 1, 1992; or

(4) any other channel number mutually agreed upon by

the station and the cable operator.11

A. Cable Deferral Proceeding

4. By letters dated June 6, 2014, PMCM notified

three MVPDs – Cablevision Systems Corporation

(Cablevision), Comcast Cable Communications, LLC

(Comcast), and TWC – that WJLP would commence

operation in August 2014 as a new television station in

the New York DMA. PMCM also notified the MVPDs

that it was electing mandatory carriage of the station’s

signal on all cable systems operated by the MVPDs in

the New York DMA and requesting carriage on channel

3. At that time, there was an ongoing dispute regarding

WJLP’s PSIP virtual channel assignment, specifically

whether PMCM was entitled to use virtual channel

number 3 for its over-the-air broadcast signal.12 The

MVPDs subsequently filed letter requests that the

Commission allow them to defer implementing

PMCM’s must-carry request and channel position

election until 90 days after the date of the Bureau’s

final decision on the appropriate virtual channel for

over-the-air broadcasting by WJLP. On July 25, 2014,

the Bureau released a Letter Order waiving Section

76.64(f)(4) of the Commission’s rules and granting the

47 U.S.C. § 534(b)(6); 47 CFR § 76.57(a), (d).

Media Bureau Seeks Comment on Request for Declaratory Ruling

by Meredith Corporation and “Alternative PSIP Proposal” by

PMCM TV, LLC for KVNV(TV), Middletown Township, New

Jersey, Public Notice, 29 FCC Rcd 10556 (MB 2014).

App. 15

MVPDs’ requests.13 On August 25, 2014, PMCM filed

an Application for Review of the Bureau’s Deferral

Letter Order, arguing that PMCM has a statutory right

to mandatory carriage of WJLP on cable systems

within its market on the channel number on which

WJLP is broadcast over the air, that PMCM is entitled

to use its over-the-air RF channel 3 as its PSIP virtual

channel number, and that the Bureau’s Deferral Letter

Order deprived WJLP of its right to cable carriage

without undue delay.14

5. On June 5, 2015, the Bureau issued a

Declaratory Ruling assigning virtual channel 33 to

WJLP.15 On June 6, 2015, the Bureau issued a Letter

Order reinstating PMCM’s must carry request and

Deferral Letter Order, 29 FCC Rcd at 9105; 47 CFR § 76.64(f)(4)

(requiring that a station’s election of must-carry status take effect

within 90 days of its election).

Deferral Application for Review at 1-3.

Request for Declaratory Ruling by Meredith Corporation and

Alternative PSIP Proposal by PMCM TV, LLC for WJLP (Formerly

KVNV(TV)), Middletown Township, New Jersey, Declaratory

Ruling, 30 FCC Rcd 6078, 6092, para. 34 (MB 2015) (PMCM PSIP

Declaratory Ruling). PMCM filed an Application for Review of the

PMCM PSIP Declaratory Ruling. The Commission is issuing an

order addressing the Application for Review of the PMCM PSIP

Declaratory Ruling concurrently with the instant order. Request

for Declaratory Ruling by Meredith Corporation and “Alternative

PSIP Proposal” by PMCM TV, LLC for WJLP (Formerly

KVNV(TV)), Middletown Township, New Jersey, Memorandum

Opinion and Order, MB Docket No. 14-150, FCC 17-118 (2017)

(PMCM PSIP MO&O).

App. 16

channel position election for WJLP. 16 The

Reinstatement Letter Order found that the PMCM PSIP

Declaratory Ruling removed the uncertainty regarding

WJLP’s PSIP virtual channel number that necessitated

the Deferral Letter Order and that PMCM’s initial

must-carry request and channel position election

seeking carriage on cable channel 3 would take effect in

90 days, on September 3, 2015.17 The Reinstatement

Letter Order further stated that if the MVPDs do not

implement PMCM’s original must-carry request or

channel position election within 90 days, PMCM may

choose to invoke the cable carriage enforcement

procedures set forth in Section 614 of the Act and

Section 76.61 of the Commission’s rules,18 or

alternatively, PMCM may pursue carriage of WJLP on

channel 33, the virtual channel the Bureau assigned to

WJLP in the PMCM PSIP Declaratory Ruling.19 On

July 6, 2015, PMCM filed an Application for Review of

the Reinstatement Letter Order, arguing that the

Bureau has negatively prejudged any complaint PMCM

might file under the cable carriage enforcement

procedures and that WJLP is entitled to cable carriage

on cable channel 3, the channel number corresponding

to the station’s over-the-air RF channel assignment.20

Reinstatement Letter Order, 30 FCC Rcd at 6116.

Id. at 6117.

47 U.S.C. § 534(d); 47 CFR § 76.61.

Reinstatement Letter Order, 30 FCC Rcd at 6117.

Reinstatement Application for Review at 4-5.

App. 17

B. Cable Carriage Proceedings

6. RCN operates cable television systems serving

various communities within the New York DMA. WJLP

did not make a formal election on RCN’s systems and,

as a result, defaulted to must carry status pursuant to

Section 76.64(f)(3) of the Commission’s rules.21 On

October 22, 2015, PMCM gave written notice to RCN

pursuant to Section 76.61 of the Commission’s rules

that RCN had failed to meet its statutory and

regulatory carriage obligations by failing to carry

WJLP on channel 3.22 RCN did not respond to this

letter.23 On January 19, 2016, PMCM filed a must carry

complaint against RCN seeking carriage of WJLP on

cable channel 3.24

7. By letter dated September 14, 2014, PMCM

notified SECTV-NJ, which operates cable television

PMCM v. RCN, 31 FCC Rcd at 5225, para. 3. See 47 CFR

§ 76.64(f)(3).

PMCM v. RCN, 31 FCC Rcd at 5225-26, para. 3. See 47 CFR

§ 76.61(a)(1) (“Whenever a local commercial television station …

believes that a cable operator has failed to meet its carriage or

channel positioning obligations, pursuant to §§76.56 and 76.57,

such station shall notify the operator, in writing, of the alleged

failure and identify its reasons for believing that the cable operator

is obligated to carry the signal of such station or position such

signal on a particular channel.”).

PMCM v. RCN, 31 FCC Rcd at 5226, para. 3.

Id. PMCM stated in its complaint that RCN was currently

carrying WJLP on cable channel 33 pursuant to the Bureau’s

previously stated position that must-carry stations must be carried

on the PSIP channel associated with the station. Id.

App. 18

systems serving various communities in the New York

DMA, that WJLP was electing mandatory carriage for

the election period starting January 1, 2015, and

ending December 31, 2017, on all cable systems

operated by SECTV-NJ in the New York DMA on

channel 3, asserting that channel 3 was its “over the

air” channel number.25 On October 22, 2015, PMCM

gave written notice to SECTV-NJ pursuant to Section

76.61 of the Commission’s rules that SECTV-NJ had

failed to meet its statutory and regulatory carriage

obligations by failing to carry WJLP on channel 3.26 By

letter dated November 18, 2015, SECTV-NJ rejected

PMCM’s demand to be carried on channel 3, but

indicated that it was “open to discussing carriage of

WJLP on a mutually agreeable channel that is within

the neighborhood of the other broadcast signals

carried.”27 On January 19, 2016, PMCM filed a must

carry complaint against SECTV-NJ seeking carriage of

WJLP on cable channel 3.28

8. By letter dated June 6, 2014, PMCM notified

TWC, which operates cable television systems serving

various communities in the New York DMA, that

WJLP would commence operation in August 2014 as a

new television station in the New York DMA and that

it was electing mandatory carriage for the election

period ending December 31, 2014, for WJLP on all

PMCM v. SECTV-NJ, 31 FCC Rcd at 5231, para. 3.

Id. at 5232, para. 3.

Id.

App. 19

cable systems operated by TWC in the New York DMA

on channel 3, asserting that channel 3 was its “over the

air” channel number.29 On July 17, 2015, following the

Bureau’s issuance of the Reinstatement Letter Order,

TWC sent PMCM a letter inquiring whether PMCM

intended to elect carriage for WJLP on cable channel 33

and indicating that it intended to voluntarily begin

carrying WJLP, an affiliate of the MeTV network, on

cable channel 1239, which was currently occupied by

the satellite feed of the MeTV network, in order to

provide a seamless transition for viewers of MeTV

programming.30 In its response dated July 28, 2015,

PMCM reaffirmed its election of mandatory carriage on

cable channel 3, declined an election for the placement

of WJLP on cable channel 33, and accepted TWC’s offer

to carry WJLP on an interim basis on channel 1239.31

By letter dated July 30, 2015, TWC acknowledged

PMCM’s must carry election for WJLP and confirmed

that it would commence carriage of WJLP on cable

channel 1239 on or before September 3, 2015.32 TWC

launched WJLP on cable channel 1239 on August 25,

2015.33 On October 22, 2015, PMCM gave written

notice to TWC pursuant to Section 76.61 of the

Commission’s rules that TWC’s carriage of WJLP on

cable channel 1239 fails to meet its statutory and

PMCM v. TWC, 31 FCC Rcd at 5237, para. 3.

Id. at 5238, para. 4.

Id.

App. 20

regulatory carriage obligations.34 By letter dated

November 19, 2015, TWC denied PMCM’s request for

carriage on cable channel 3, asserting that PMCM has

no right to demand carriage of WJLP on channel 3 and

that TWC’s carriage of WJLP on channel 1239 is proper

because PMCM was given the opportunity to update its

channel placement election to select channel 33 but

failed to do so.35 On January 19, 2016, PMCM filed a

must carry complaint against TWC seeking carriage of

WJLP on cable channel 3.36

9. On May 17, 2016, the Bureau issued three

MO&Os denying PMCM’s must carry complaints

against RCN, SECTV-NJ, and TWC.37 The Bureau

concluded that PMCM is not entitled to mandatory

carriage of WJLP on the cable systems of RCN,

SECTV-NJ, and TWC in the New York DMA on cable

channel 3, the channel number corresponding to

WJLP’s RF channel assignment.38 The Bureau found

that under the Commission’s 2008 Declaratory Order

addressing the responsibilities of cable operators with

respect to carriage of digital broadcasters, a digital

Id.

PMCM v. RCN, 31 FCC Rcd at 5224, para. 1; PMCM v. SECTVNJ, 31 FCC Rcd at 5230, para. 1; PMCM v. TWC, 31 FCC Rcd at

5236, para. 1.

PMCM v. RCN, 31 FCC Rcd at 5226, para. 5; PMCM v. SECTVNJ, 31 FCC Rcd at 5232, para. 5; PMCM v. TWC, 31 FCC Rcd at

5239, para. 7.

App. 21

broadcast station’s virtual channel assignment, not its

RF channel assignment, is the relevant channel

number for purposes of determining the station’s cable

carriage position.39 The Bureau rejected PMCM’s

assertion that the 2008 Declaratory Order merely

acknowledged that, following the digital transition,

stations might prefer to claim carriage rights on their

newly-adopted virtual channels and gave stations the

option of demanding carriage on either their virtual

channels or their RF channels.40 The Bureau also

rejected PMCM’s claim that tying cable carriage rights

exclusively to PSIPs rather than allotted channels

would upset the cable carriage rights of possibly

hundreds of stations across the country, noting that

PMCM presented no evidence that the decision in the

2008 Declaratory Order has upset the cable carriage

rights of hundreds of stations.41

10.

On June 10, 2016, PMCM filed a

Consolidated Application for Review of the Bureau’s

PMCM v. RCN, 31 FCC Rcd at 5227, para. 6; PMCM v. SECTVNJ, 31 FCC Rcd at 5233, para. 6; PMCM v. TWC, 31 FCC Rcd at

5240, para. 8 (each quoting Carriage of Digital Television

Broadcast Signals: Amendment to Part 76 of the Commission’s

Rules, Declaratory Order, 23 FCC Rcd 14254, 14259, para. 15

(2008) (2008 Declaratory Order)).

PMCM v. RCN, 31 FCC Rcd at 5227-28, para. 7; PMCM v.

SECTV-NJ, 31 FCC Rcd at 5234, para. 7; PMCM v. TWC, 31 FCC

Rcd at 5240, para. 9.

PMCM v. RCN, 31 FCC Rcd at 5228, para. 7; PMCM v. SECTVNJ, 31 FCC Rcd at 5234, para. 7; PMCM v. TWC, 31 FCC Rcd at

5241, para. 9.

App. 22

three MO&Os.42 In its Consolidated Application for

Review, PMCM argues that a station’s “over-the-air

channel” under Section 614(b)(6) of the Act refers to a

transmitted frequency band, not a “virtual channel,”

and Section 614(b)(6) guarantees a TV station the right

to cable carriage on its “over-the-air channel”; that if

the Bureau’s interpretation of “channel” in the Act is

correct, the majority of stations which have thought

themselves entitled to must carry status for the last

two and a half decades under Section 614(h) of the Act

do not now qualify because they are not “licensed and

operating on a channel regularly assigned to a

community within a cable system’s market”; that the

Spectrum Act precludes the Bureau from changing

WJLP’s channel from 3 to 33; the Bureau erred in

acting on a novel matter on delegated authority; that

WJLP is entitled to cable carriage on a VHF channel

number under Section 331 of the Act; that the

Commission failed to act on PMCM’s must carry

demand within the 120-day period set by statute; and

that the Bureau improperly denied PMCM’s cable

carriage demand on RCN because RCN’s opposition to

the demand was untimely.43 On June 27, 2016, SECTV42

PMCM Consolidated Application for Review at 1.

Id. at 6-14. PMCM claims that the delay in resolving the virtual

major channel issue, followed by the assignment of an “erroneous”

virtual major channel, and then the denial of must carry rights on

cable channel 3 has resulted in millions of viewers being unable to

access WJLP’s signal over the air or on cable, thus crippling its

ability to provide the service to New Jersey which it was intended

by Congress to deliver. Id. at 3. We note, however, that WJLP has

been carried on numerous cable systems serving the New York

DMA since September 2015. See PMCM TV, LLC, WJLP,

Middletown Township NJ, Facility ID No. 86537, Letter from

App. 23

NJ and TWC filed Oppositions to PMCM’s

Consolidated Application for Review.44 On July 6, 2016,

PMCM filed a Consolidated Reply to the Oppositions

filed by SECTV-NJ and TWC.45

Donald J. Evans, Counsel for PMCM TV, LLC, to Marlene H.

Dortch, Secretary, FCC, at 2 (filed Sept. 30, 2015) (stating that

Cablevision, Comcast, and TWC cable systems in the New York

DMA were carrying WJLP); Id., Letter from Tara M. Corvo,

Counsel to Cablevision Systems Corp., to William T. Lake, Chief,

Media Bureau, FCC, at 1 (filed Sept. 24, 2015) (stating that all

Cablevision cable systems in the New York DMA on which WLJP

had must carry rights began carrying WJLP on Sept. 3, 2015); Id.,

Letter from Frederick W. Giroux, Counsel to Comcast Cable

Communications, L.L.C., to William T. Lake, Chief, Media Bureau,

FCC, at 1 (filed Sept. 30, 2015) (stating that Comcast cable

systems serving New Jersey communities in the New York DMA

began carrying WJLP on Sept. 3, 2015); Letter from Seth A.

Davidson, Counsel to Time Warner Cable Inc., to William T. Lake,

Chief, Media Bureau, FCC, at 1 (filed Sept. 30, 2015) (stating that

TWC cable systems in the New York DMA began carrying WJLP

on Aug. 25, 2015).

SECTV-NJ Opposition to Application for Review, MB Docket No.

16-26 (filed June 27, 2016), https://ecfsapi.fcc.gov/

file/10627013361891/Service%20Electric%20Opp%20to%20Appli

cation%20for%20Review.pdf (SECTV-NJ Opposition); TWC

Opposition to Application for Review, MB Docket No. 16-27 (filed

June 27, 2016), https://ecfsapi.fcc.gov/file/106272523715719/

TWC%20Opposition%20to%20PMCM%20Application%20for%20R

eview%20June%202016.PDF (TWC Opposition). RCN did not file

an Opposition to the Application for Review.

PMCM Consolidated Reply to Oppositions to Application for

Review, MB Docket Nos. 16-25, 16-26, 16-27 (filed July 6, 2016),

https://ecfsapi.fcc.gov/file/10726786115541/16071902-7.pdf (PMCM

Consolidated Reply).

App. 24

III. DISCUSSION

A. The Bureau Properly Concluded that

WJLP’s Channel Positioning Rights Are

Based on its PSIP Virtual Channel, Not its

RF Channel

11.

For the reasons set forth herein, we conclude

that interpreting the on-channel carriage option to

define a digital station’s “over the air” channel number

by reference to the station’s PSIP channel is reasonable

and best serves the statutory purpose of the must-carry

regime -- to ensure that broadcasters are not unfairly

disadvantaged by cable operators’ channel placement

determinations.46 The Commission’s decision to tie the

on-channel carriage option to PSIP channels serves this

statutory purpose because it preserves broadcast

stations’ brand identity, allowing stations to elect cable

carriage on the same channel numbers stations use to

identify and market themselves to over-the-air

See 1992 Cable Act, §2(a)(15) (“A cable television system which

carries the signal of a local television broadcaster is assisting the

broadcaster to increase its viewership, and thereby attract

additional advertising revenues that otherwise might be earned by

the cable system operator. As a result, there is an economic

incentive for cable systems to terminate the retransmission of the

broadcast signal, refuse to carry new signals, or reposition a

broadcast signal to a disadvantageous channel position.”). The

Commission identified the PSIP protocol as the critical element in

furthering the purposes of the must-carry regime. First Report and

Order, 16 FCC Rcd at 2635, para. 83 (requiring cable operators to

pass through channel mapping data because “the channel mapping

protocols contained in the PSIP identification stream adequately

address location issues consistent with Congress’s concerns about

nondiscriminatory treatment of television stations by cable

operators.”).

App. 25

viewers.47 PMCM’s statutory interpretation, in

contrast, would allow broadcasters to elect carriage

only on their RF channels and thus would disrupt the

existing must-carry regime by depriving broadcasters

of the right to cable carriage on the channel number on

which they have built their brand and on which

viewers would expect to find the station. Moreover,

PMCM’s interpretation of the 2008 Declaratory Ruling

to allow broadcast stations to elect cable carriage on

either of two channels (RF or PSIP) would upend the

must-carry system by creating conflicts between

stations broadcasting on an RF channel that has the

same number as another station’s PSIP major channel

number. Accordingly, we conclude that the Bureau

properly rejected PMCM’s claim that WJLP is entitled

to mandatory carriage on the RCN, SECTV-NJ, and

TWC cable systems on cable channel 3, the channel

number corresponding to WJLP’s RF channel

assignment.48

12.

PMCM asserts that Section 614(b)(6) of the

Act indisputably requires a cable operator to carry a

local broadcast station asserting must carry rights on

the cable channel corresponding to the channel on

See TWC Opposition at 4 (asserting that the Commission’s

decision in the 2008 Declaratory Order was consistent with the

underlying purpose of the channel positioning rules, which is to

address concerns that cable operators could make it difficult for

their subscribers to find local broadcast television stations by

assigning those stations cable channel numbers that differed from

the channel numbers stations use to identify and market

themselves to over-the-air viewing audiences).

PMCM Consolidated Application for Review at 6.

App. 26

which the station “is broadcast over the air.”49 PMCM

states that the term “channel” is used throughout the

Commission’s rules to refer to the frequency band on

which a radio wave modulates when it is emitted from

a transmitter and that channels are identified in the

Commission’s TV rules with specific frequency bands.50

PMCM further states that because WJLP is required

by the FCC’s DTV Table of Allotments and its license

to transmit on channel 3 (60-66 MHz), channel 3 must

be the channel on which the station broadcasts “over

the air.”51 According to PMCM, “[t]he arrival of digital

television and, with it, the notion of ‘virtual’ channels,

did not alter the statutory mandate of Section 614(b)(6)

and did not affect PMCM’s right to carriage on Channel

3.”52

13.

We find PMCM’s argument unpersuasive.

Congress did not define the meaning of the phrase

“channel number on which the local commercial

television station is broadcast over the air” as used in

Section 614(b)(6). When this provision was enacted, the

channel number on which a station’s signal was

transmitted was the same channel number that

viewers selected on their television tuner. As a result

of the digital transition, that is not always the case

Id.; 47 U.S.C. § 534(b)(6). See also 47 CFR § 76.57(a).

PMCM Consolidated Application for Review at 6; PMCM

Consolidated Reply at 4.

PMCM Consolidated Application for Review at 6. See 47 CFR

§ 73.622(h)(2)(i) (DTV Table of Allotments).

PMCM Consolidated Application for Review at 6-7 (emphasis in

original).

App. 27

today, and the term “broadcast over the air” thus could

refer either to the RF spectrum the station uses to

transmit its signal or the virtual (that is, PSIP)

channel number the viewer selects on his or her

television tuner. In 2008, pursuant to its authority to

modify the statutory signal carriage requirements,53

the Commission clarified that for purposes of the onchannel carriage option, a station’s “over the air”

channel number would be defined by a station’s PSIP

channel, not its RF channel.54 The fact that the term

“channel” is used in some contexts in the Commission’s

rules and the Act to refer to a transmission frequency

band does not mean that it is unreasonable to treat a

digital station’s virtual channel as the channel on

which the station “is broadcast over the air” for the

limited purposes of the on-channel carriage option in

Section 614(b)(6).55 Further, interpreting the phrase

47 U.S.C. § 534(b)(4)(B).

2008 Declaratory Order, 23 FCC Rcd at 14259, paras. 15-16.

As SECTV-NJ points out, the term “channel” has multiple

meanings throughout the Commission’s rules and the Act and even

within Section 614 of the Act itself. For example, in Section

614(b)(1)(A) and (B), the term “channel” is used to refer to the

number of different programming streams transmitted by a cable

system, not the transmission frequencies of these programming

streams. SECTV-NJ Opposition at 4-5. See 47 U.S.C. § 534(b)(1)(A)

(“A cable operator of a cable system with 12 or fewer usable

activated channels shall carry the signals of at least three local

commercial television stations”); § 534(b)(1)(B) (“A cable operator

of a cable system with more than 12 usable activated channels

shall carry the signals of local commercial television stations, up

to one-third of the aggregate number of usable activated channels

of such system.”). See also 47 U.S.C.§ 522(1) (“[T]he term ‘activated

channels’ means those channels engineered at the headend of a

App. 28

“channel number on which the local commercial

television station is broadcast over the air” to refer to

a station’s PSIP major channel number is consistent

with the purpose of the channel placement provisions,

which was to ensure that cable operators could not

disadvantage broadcasters by placing their

programming in an undesirable channel position.56 The

statutory “over the air,” or “on channel,” placement

option protects broadcasters from disadvantaged

channel placement by giving them the right to cable

carriage on the channel on which they have built their

brand. When the statute was enacted in 1992, this was

their RF channel. In today’s post-digital marketplace,

the PSIP major channel number serves the same

purpose by ensuring that broadcasters’ decision to

switch to a new RF channel post transition will not

cable system for the provision of services generally available to

residential subscribers of the cable system, regardless of whether

such services actually are provided, including any channel

designated for public, educational, or governmental use.”); id. § 531

(“Cable channels for public, educational, or governmental use”); id.

§ 522(4) (defining the terms “cable channel” and “channel” to mean

“a portion of the electromagnetic frequency spectrum which is used

in a cable system and which is capable of delivering a television

channel (as television channel is defined by the Commission by

regulation).”); id. § 309(j)(15)(C)(vi) (referring to “the spectrum

between channels 52 and 69, inclusive” as the spectrum “between

frequencies 698 and 806 megahertz, inclusive”); id. § 543(l)(2)

(defining “cable programming service” to mean any video

programming provided over a cable system . . . other than (A) video

programming carried on the basic service tier, and (B) video

programming offered on a per channel or per program basis.”).

See note 46, supra.

App. 29

affect their historic brand identity.57 Although the PSIP

protocol did not exist in 1992, it is reasonable to

interpret the ambiguous statutory language in light of

the evolution of broadcasting technology.58

14.

Moreover, as a separate and independent

basis for affirming the Bureau’s conclusion that the “on

channel” placement option is determined with

reference to a broadcaster’s PSIP channel number, we

conclude that Section 614 (b)(4)(B) of the Act

authorizes the Commission to define the statutory right

with reference to the PSIP protocol rather than RF

transmission. When Congress enacted Section 614(b)(6)

as part of the must carry/retransmission consent

regime, it recognized that the transition to digital

television would necessitate changes to the signal

See Second Periodic Review, 19 FCC Rcd at 18291 (because the

PSIP protocol preserves stations’ analog brand identity, “channel

election decisions need not be based on considering stations’

historic ‘branding’ to consumers, but instead may be based more on

the operating characteristics of a particular frequency and the

service populations the stations would project for each channel.”).

The fact that PMCM wishes to build a brand on channel 3 does not

undermine this conclusion. PMCM lacked a channel 3 brand

identity its new market when it sought to have its channel reallocated to New Jersey.

See 47 U.S.C. § 534(b)(4)(B) (concerning future Commission

modification of standards for television broadcast signals); Agape

Church, Inc. v. FCC, 738 F.3d 397, 407 (D.C. Cir. 2013) (upholding

agency’s interpretation of ambiguous statutory provision because

agency “had latitude, within the bounds of the statute, ‘to adapt

[its] rules and policies to the demands of changing

circumstances.’”) (citation omitted).

App. 30

carriage requirements of cable television systems.59

Congress accordingly granted the Commission broad

authority to make such changes through its concurrent

adoption of Section 614(b)(4)(B) of the Act, which

provides:

At such time as the Commission prescribes

modifications of the standards for television

broadcast signals, the Commission shall initiate

a proceeding to establish any changes in the

signal carriage requirements of cable television

systems necessary to ensure cable carriage of

such broadcast signals of local commercial

television stations which have been changed to

conform with such modified standards.60

15.

Pursuant to this authority, the Commission

sought comment on whether and, if so, how the onchannel carriage option should be modified as a result

of the digital transition.61 At that same time, the

SECTV-NJ Opposition at 5 (“Congress recognized as early as

1992 when Section 614 was passed that the change from analog TV

transmission to digital TV transmission would require the FCC to

adopt future carriage rules that were consistent with, but

cognizant of, the digital revolution.”).

47 U.S.C. § 534(b)(4)(B). See also id. § 338(j) (directing the

Commission to issue regulations prescribing requirements on

satellite carriers that are comparable to the requirements on cable

operators under Section 616(b)(4)(B)).

See Carriage of the Transmissions of Digital Television

Broadcast Stations, Notice of Proposed Rulemaking, 13 FCC Rcd

15092, 15128, para. 78 (1998) (seeking comment on which of the

statutory channel positioning options remain applicable in a digital

environment), 15128-29, para. 80 (seeking comment on the need

App. 31

industry was developing the PSIP protocol. In 2001, in

its First Report and Order in the proceeding addressing

digital broadcast signal carriage issues, the

Commission concluded that “[i]n the digital

environment it is generally anticipated that broadcast

signals will be identified and tuned to through the

PSIP information process rather than by identification

with the specific frequency on which the station is

broadcasting.”62 While some broadcasters had

suggested that the analog channel positioning

requirements should apply to DTV signals, the

Commission rejected this suggestion, finding “that

there is no need to implement channel positioning

requirements for digital television signals of the same

type currently applicable to analog signals.”63 Rather,

it found that “the channel mapping protocols contained

in the PSIP identification stream adequately address

location issues consistent with Congress’s concerns

about nondiscriminatory treatment of television

stations by cable operators.”64 The Commission

for specific channel positioning requirements given the

development of PSIP protocols that will technically link the digital

channel number with that assigned to the analog channel);

Advanced Television Sys. & Their Impact Upon the Existing

Television Broad. Serv., Fourth Further Notice of Proposed Rule

Making and Third Notice of Inquiry, 10 FCC Rcd 10540, 10553,

para. 83 (1995), subsequent hist. omitted (“Does ‘on-channel’

carriage have the same meaning in a digital as it does in an analog

environment?”).

First Report and Order, 16 FCC Rcd at 2635, para. 83.

Id. at 2634-35, paras. 82-83.

Id. at 2635, para. 83.

App. 32

accordingly adopted new Section 76.57(c) of the

Commission’s rules to require cable operators to pass

through the PSIP information to ensure that cable

subscribers would be able to tune to broadcast signals

on their PSIP channel.65 The Commission subsequently

amended its rules to adopt the ATSC PSIP standard as

part of its implementation of the digital transition.66 In

its 2008 Declaratory Order, the Commission explained

that “Section 76.57(c), adopted in the First Report and

Order, should be read as clarifying the manner in

which cable operators are to determine the channel

number on which a local commercial or qualified NCE

station is ‘broadcast over the air’ when implementing

such a station’s election under Sections 76.57(a) or

(b).”67 The Commission stated that “[i]n digital

broadcasting, a broadcast station’s channel number is

no longer identified by reference to its over-the-air

Id. See 47 CFR § 76.57(c) (“With respect to digital signals of a

television station carried in fulfillment of the must-carry

obligations, a cable operator shall carry the information necessary

to identify and tune to the broadcast television signal.”).

Second Periodic Review, 19 FCC Rcd at 18345, para. 152; 47

CFR § 73.682(d) (requiring digital television signals to comply with

ATSC A/65C (ATSC Program and System Information Protocol for

Terrestrial Broadcast and Cable, Revision C with Amendment No.

1 dated May 9, 2006)). Under the PSIP protocol, stations that were

operating on analog channels in 2004, when Section 73.682(d) was

adopted, and were likely being viewed on cable on their analog

channel numbers, were eligible to continue to be viewed on cable

on that same channel number when they transitioned to digitalonly on a different digital RF channel, thus allowing those stations

to maintain their local brand identification. Second Periodic

Review, 19 FCC Rcd at 18345, para. 153.

2008 Declaratory Order, 23 FCC Rcd at 14259, para. 16.

App. 33

radio frequency [but instead] “the station’s ‘major

channel number’ is identified in its [PSIP].”68 Thus, the

Commission made clear in the 2008 Declaratory Order

that the carriage rights of a digital station attach to its

PSIP major channel number rather than its RF

channel number.69

16.

We reject PMCM’s contention that Section

614(b)(4)(B) does not give the Commission the

authority to clarify the rights of digital stations under

the on-channel carriage option because that section is

a subsection of Section 614(b)(4), which is entitled

“Signal Quality” and “deals only with the technical

aspects of receiving a TV signal.”70 According to PMCM,

“[i]t is well-established that ‘where Congress includes

particular language in one section of a statute but

omits it in another ..., it is generally presumed that

Congress acts intentionally and purposely in the

Id. at para. 15.

See TWC Opposition at 4 (asserting that the Commission’s

decision in the 2008 Declaratory Order was consistent with the

underlying purpose of the channel positioning rules, which is to

address concerns that cable operators could make it difficult for

their subscribers to find local broadcast television stations by

assigning those stations cable channel numbers that differed from

the channel numbers stations use to identify and market

themselves to over-the-air viewing audiences).

PMCM Consolidated Application for Review at 8; PMCM

Consolidated Reply at 5. PMCM states that there is no technical

reason for designating the virtual channel as the over-the-air

channel for purposes of Section 614(b)(6); rather, it was allowed

solely to accommodate stations’ desire to be perceived as their old

analog channel. PMCM Consolidated Application for Review at 8;

PMCM Consolidated Reply at 5.

App. 34

disparate inclusion or exclusion.’”71 PMCM asserts that

the language of Section 614(b)(4)(B) demonstrates “that

Congress knew how to provide the Commission

authority to adapt its technical rules as necessary” and

that if Congress had intended to give the Commission

the authority to make changes to the cable carriage

provisions of Section 614(b)(6), Congress would have

included similar language in that section.72 We

acknowledge that the meaning of Section 614(b)(4) is

not clear. We find, however, that Congress’ inclusion of

Section 614(b)(4)(B) as a subsection of Section 614(b)(4)

does not evince an intent to limit the Commission’s

authority to making changes to the “technical aspects

of receiving a TV signal.”73 We think a more

appropriate reading of Section 614(b)(4)(B) is that

Congress intended to grant the Commission the

authority to make any changes to the signal carriage

requirements necessitated by modification of the

standards for digital television broadcast signals. This

reading is supported by the language of Section

614(b)(4)(B), which authorizes the Commission to make

“any changes in the signal carriage requirements of

cable television systems necessary to ensure cable

carriage of such broadcast signals of local television

PMCM Consolidated Application for Review at 8-9 (citing Keene

Corp. v. United States, 508 U.S. 200, 208 (1993)).

Id. at 9 (emphasis in original). See also PMCM Consolidated

Reply (“Neither the FCC nor anyone else has suggested that there

is a technical reason why the PSIP number should or must be

substituted for the over the air channel number in the digital

era.”).

PMCM Consolidated Application for Review at 8.

App. 35

stations….”74 Further, although the heading for Section

614(b)(4) is “Signal Quality,” Section 614(b)(4)(B)

authorizes the Commission “to establish any changes

in the signal carriage requirements” it deems

necessary. The Act does not say the Commission shall

establish a proceeding to establish any changes in the

“signal quality” requirements applicable to the carriage

of broadcast stations by cable operators.75 Moreover,

while the phrase “signal carriage requirements” is not

defined, we believe it is logical to interpret that term

broadly to include the channel positioning

requirements of Section 614(b)(6) given that Section

614 is entitled “Carriage of local commercial television

signals,”76 and the channel positioning requirements

are set forth in a subsection of Section 614. Finally, in

contrast with Section 614(b)(4)(A), which is entitled,

“Nondegradation; technical specifications,” Section

614(b)(4)(B) does not use the words “technical,” “signal

47 U.S.C. § 534(b)(4)(B) (emphasis added).

It is not necessary to interpret the Commission’s authority

narrowly, as PMCM advocates, in order to make sense of its

placement under the “Signal Quality” heading. The inclusion of

Section 614(b)(4)(B) under the heading “Signal Quality” makes

sense when considered in context – the quality of broadcast signals

changed dramatically due to the transition from analog

transmission to digital transmission. Thus, the inclusion of that

section under the heading “Signal Quality” can be reconciled with

our broad interpretation of the scope of the Commission’s

authority.

47 U.S.C. § 534 (emphasis added) (“Each cable operator shall

carry, on the cable system of that operator, the signals of local

commercial television stations and qualified low power stations as

provided by this section.”)

App. 36

quality,” or other words to that effect, such as

“nondegradation.” Section 614(b)(4)(B) is entitled,

“Advanced television” and authorizes the Commission

to modify cable operators’ broadcast signal carriage

obligations in light of the transition to digital TV. Had

Congress intended to limit authority granted in Section

614(b)(4)(B) to technical specifications or signal quality,

it could have done so. That it did not is unsurprising,

given that the digital transition introduced significant

changes to the broadcasting industry such as the use of

paired channels by broadcasters transmitting the same

programming in both analog and digital format.

Changes such as these could be expected to require

regulatory measures affecting various rights and

obligations, not just those affecting signal quality or

other technical characteristics.

17.

The digital transition presented complicated,

interrelated issues involving both virtual channel

assignment (PSIP) and cable carriage. When it

exercised the authority granted by Section 614(b)(4),

the Commission reasonably interpreted the statutory

on-channel provision to refer to a single channel, not

either of two channels (i.e., PSIP or RF), given that the

statute provides for carriage on “the channel” on which

a station broadcasts over the air. The Commission’s

determination that the on-channel cable carriage

option is tied to a station’s PSIP channel ensured cable

carriage by preserving broadcasters’ ability to demand

carriage on their analog channel position, where

viewers were accustomed to finding the station’s signal,

even if they were transmitting on a different channel

post-transition. This decision served the broad

statutory purpose of the must-carry regime, which was

to ensure that broadcasters were not unfairly

App. 37

disadvantaged by cable operators’ channel placement

determinations.77 During the digital transition,

broadcasters were permitted to transmit their signal in

both analog and digital format, necessitating the use of

two RF channels. The Commission’s PSIP protocol

allowed viewers to receive the DTV signal, even if they

did not know the digital channel number, simply by

tuning to the station’s analog channel.78 From the

viewer’s perspective, the station was broadcasting on

the same channel in both analog and digital. Because

of the different propagation characteristics of analog

and digital transmission, many broadcasters chose to

transmit their signal after the digital transition on an

RF channel other than their historical analog

channel.79 Again, the PSIP protocol allowed viewers to

find the station’s digital signal by tuning to the

station’s pre-transition analog channel number.80 The

See note 46, supra.

PMCM PSIP Declaratory Ruling, 30 FCC Rcd at 6080, para. 6.

In fact, this aspect of the digital transition created the VHF

vacancy in New Jersey that PMCM used as the basis for its reallocation notification pursuant to Section 331(a) of the Act. At the

end of the digital transition, WWOR-TV decided to transmit its

digital signal permanently on channel 38, and it ceased operating

on channel 9. See id., 30 FCC Rcd at 6082, para. 10. See also

Second Periodic Review, 19 FCC Rcd at 18291 (because the PSIP

protocol preserves stations’ analog brand identity, “channel

election decisions need not be based on considering stations’

historic ‘branding’ to consumers, but instead may be based more on

the operating characteristics of a particular frequency and the

service populations the stations would project for each channel.”).

See PMCM PSIP Declaratory Ruling, 30 FCC Rcd at 6080, para.

6; TWC Opposition at 3.

App. 38

Commission’s decision to apply the on-channel carriage

option to PSIP channels was a reasonable means of

fulfilling the statutory purpose by enabling

broadcasters to demand carriage on the channel on

which they had built their brand before the digital

transition, consistent with congressional concerns

about discriminatory behavior by cable operators.81

Unlike the vast majority of broadcasters affected by the

digital transition, PMCM is not seeking to preserve a

brand identity built through a long history of analog

operations in the area it now serves. PMCM operated

on analog channel 3 only in Nevada.82 While it would

PMCM claims that “[n]either the FCC nor anyone else has

suggested that there is a technical reason why the PSIP number

should or must be substituted for the over the air channel number

in the digital era. . . . [T]here is nothing about PSIPs that

‘necessitates’ a change in signal carriage requirements for cable

systems due to changed TV transmission standards.” PMCM

Consolidated Reply at 5. We do not read the term “necessary” in

Section 614(b)(4)(B) to mean “indispensable.” In our view, a change

is “necessary” where (as here) it is conducive to serving the goals

of the statute. See Cellco P’ship v. FCC, 357 F.3d 88, 97 (D.C. Cir.

2004) “[C]ourts have long recognized that the term ‘necessary’ does

not always mean ‘indispensable’ or ‘essential.’”); CTIA v. FCC, 330

F.3d 502, 509 (D.C. Cir. 2003) (“[I]t suffices that a statute is

conducive to and is plainly adapted to its end . . . .”) (internal

quotations omitted); id. at 510 (“Indeed, there are many situations

in which the use of the word ‘necessary,’ in context, means

something that is done, regardless of whether it is indispensable,

to achieve a particular end.”). That PMCM disagrees with the

carriage rights afforded to WJLP does not undermine the validity

of the Commission’s industry-wide implementation of the statutory

must-carry regime in furtherance of statutory goals.

PMCM did not even begin broadcasting on channel 3 in New

Jersey until five years after the transition.

App. 39

prefer to build its brand in the New York DMA on

channel 3, PMCM has not shown that its unique

situation warrants a conclusion that the Commission

exceeded its statutory authority when it clarified the

rights of digital stations under the on-channel carriage

option in the 2008 Declaratory Order.

18.

Further, while there is little discussion of

Section 614(b)(4)(B) in the legislative history of the

1992 Cable Act,83 the Commission previously has found

that the legislative history of Section 336 of the Act

reflects an intent by Congress that the Commission

address must carry issues in the proceeding authorized

With respect to Section 614(b)(4)(B), the House Conference

Report states that “when the FCC adopts new standards for

broadcast television signals, such as the authorization of broadcast

high definition television (HDTV), it shall conduct a proceeding to

make any changes in the signal carriage requirements of cable

systems needed to ensure that cable systems will carry television

signals complying with such modified standards in accordance

with the objectives of this section.” H.R. REP. NO. 102-862, at 67

(1992). The Senate Committee Report describes the provision as

providing that when the FCC adopts new standards for broadcast

television signals, such as the authorization of broadcast HDTV,

“it shall conduct a proceeding to make any changes in the signal

carriage requirements of cable systems needed to ensure that cable

systems will carry television signals complying with such modified

standards in accordance with the objectives of new Section 614.” S.

REP. NO. http://www.westlaw.com/Link/Document/FullText?

findType=Y&serNum=0100713320&pubNum=0001503&originat

ingDoc=Ide7853532bee11dbbb4d83d7c3c3a165&refType=TV&or

iginationContext=document&vr=3.0&rs=cblt1.0&transitionType

=DocumentItem&contextData=(sc.Keycite) 102-92, at 85 (1991). As

discussed in paragraph 17 above, the Commission’s determination

that the on-channel carriage option is tied to the PSIP channel is

consistent with the objectives of Section 614.

App. 40

under Section 614(b)(4)(B).84 Section 336(b)(3) specifies

that ancillary and supplementary services offered by

broadcast television stations have no mandatory

carriage rights under Section 614 or 615.85 In the First

Report and Order, the Commission observed that the

legislative history of Section 336 states: “With respect

to (b)(3), the conferees do not intend this paragraph to

confer must carry status on advanced television or

other video services offered on designated frequencies.

Under the 1992 Cable Act, that issue is to be the

subject of a Commission proceeding under section

614(b)(4)(B) of the Communications Act.”86 The

Commission found that the most logical inference of

this statement is that Congress contemplated that the

Commission would address the issue of must carry for

digital signals of local commercial and noncommercial

television stations in the proceeding authorized by

Section 614(b)(4)(B).87

First Report and Order, 16 FCC Rcd at 2608, para. 21. Section

336 was adopted as part of the Telecommunications Act of 1996.

Telecommunications Act of 1996, Pub. L. No. 104-104, § 201, 110

Stat. 56 (1996); 47 U.S.C. § 336.

47 U.S.C. § 336(b)(3) (“In prescribing the regulations required by

subsection (a), the Commission shall— … apply to any other

ancillary or supplemental service such of the Commission’s

regulations as are applicable to the offering of analogous services

by any other person, except that no ancillary or supplemental

service shall have any rights to carriage under section 614 or

615….”).

First Report and Order, 16 FCC Rcd at 2608, para. 21 (citing S.

CONF. REP. NO. 104-230, at 161 (1996)).

Id.

App. 41

19.

Moreover, we note that the Commission

relied on its broad authority under Section 614(b)(4)(B)

as the basis for numerous decisions on “non-technical”

issues related to the DTV transition. Among other

actions that the Commission took pursuant to its

authority under Section 614(b)(4)(B), it amended the

rules to clarify that commercial stations operating with

digital-only signals were entitled to mandatory

carriage;88 clarified that noncommercial stations

operating with digital-only signals were entitled to

mandatory carriage;89 extended the retransmission

consent rules to digital television stations;90 determined

that the digital signals of superstations should be

treated the same as their analog signals for purposes of

Section 325(b)(2)(D) of the Act, which exempts cable

operators from the requirement to obtain

retransmission consent from superstations whose

signals were available by a satellite or common carrier

on May 1, 1991;91 interpreted the term “primary video,”

as used in Sections 614 and 615 of the Act, to mean

only a single programming stream and concluded that

if a digital broadcaster elects to divide its digital

spectrum into multiple separate, independent, and

unrelated programming streams, only one of these

streams will be considered primary and entitled to

Id. at 2605-6, paras. 13-15.

Id. at 2608, paras. 21-22.

Id. at 2610, para. 28; 47 CFR § 76.64(f)(4).

First Report and Order, 16 FCC Rcd at 2612, para. 32. See 47

U.S.C. § 325(b)(2)(D).

App. 42

mandatory carriage;92 clarified the carriage election

process for full-power stations transitioning from

analog to digital;93 and clarified the carriage rights of

digital low power television stations.94 As SECTV-NJ

points out, PMCM’s narrow reading of Section

614(b)(4)(B) to give the Commission authority to make

changes only to the “technical aspects of receiving a TV

signal” would upend the entire mustcarry/retransmission consent regime.95

20. Finally, as discussed above, the Bureau’s

interpretation of Section 614(b)(4)(B) as authorizing

the Commission to establish PSIP channels as the

basis for a broadcaster’s use of the on-channel carriage

option is consistent with the statutory purpose.

Accordingly, we find that the Commission has ample

authority under Section 614(b)(4)(B) to clarify the

rights of digital stations under the on-channel carriage

option in Section 614(b)(6).96

First Report and Order, 16 FCC Rcd at 2622, para. 57.

2008 Declaratory Order, 23 FCC Rcd at 14258, para. 13.

Id. at 14260, para. 18.

SECTV-NJ Opposition at 6 (noting that PMCM’s reading of

Section 614(b)(4)(B) “would require the Commission now, 24 years

after the 1992 Cable Act, to go back and start completely over to

change only those carriage rules that deal with signal degradation

and leave all other carriage rules alone, totally breaking the mustcarry regime.”).

PMCM also asserts that “Congress was fully cognizant of, and

actively engaged in, the DTV transition - but at no time did

Congress even suggest that any revision of Section 614(b)(6) might

be in order.” PMCM Consolidated Application for Review at 7. As

App. 43

21.

PMCM further argues that the Commission

expressly acknowledged in the 2008 Declaratory Order

that the channel placement options in Section 614(b)(6)

of the Act “remain in effect after the digital

transition.”97 As the Bureau explained in the MO&Os,

however, this is introductory language.98 The

Commission went on to clarify that in digital

broadcasting, a broadcast station’s channel number is

no longer identified by reference to its over-the-air

radio frequency but instead is the PSIP major channel

number.99 The Commission also clarified in the 2008

Declaratory Order with respect to the two carriage

options that are tied to carriage on a specific historic

date that “although the First Report and Order did not

specifically address the significance of the statutory

provisions and rules with respect to the ‘historic’

carriage options, these statutory options remain

available to digital must-carry broadcasters.”100 The

Bureau correctly observed that this latter clarification

discussed above, Congress recognized that the DTV transition

would necessitate many changes to the signal carriage

requirements of cable television systems and provided the

Commission the authority to make those changes through Section

614(b)(4)(B).

PMCM Consolidated Application for Review at 7 (citing 2008

Declaratory Order, 23 FCC Rcd at 14258, para. 14).

PMCM v. RCN, 31 FCC Rcd at 5228 n.33; PMCM v. SECTV-NJ,

31 FCC Rcd at 5234 n.33; PMCM v. TWC, 31 FCC Rcd at 5240

n.40.

2008 Declaratory Order, 23 FCC Red at 14259, para. 15.

100

Id. at 14259, para. 16.

App. 44

was necessary “because, in the First Report and Order,

the Commission distinguished the two date-dependent

channel placement options from the on-channel option,

stating that they ‘are not suitable in the era of digital

television.’”101 Thus, we do not believe that the

statement cited by PMCM supports its position that it

is entitled to mandatory carriage of WJLP on its RF

channel number.

22. Additionally, we find no merit in PMCM’s

argument that the Commission expanded a licensee’s

must carry channel placement options to include

placement on a station’s virtual channel number purely

as an option and that the availability of this option

does not alter a station’s right under Section 6l4(b)(6)

to placement on its over-the-air channel.102 In fact, the

101

PMCM v. RCN, 31 FCC Rcd at 5228 n.33; PMCM v. SECTV-NJ,

31 FCC Rcd at 5234 n.33; PMCM v. TWC, 31 FCC Rcd at 5240 n.40

(all citing First Report and Order, 16 FCC Rcd at 2633 n.235).

PMCM also argues that the Bureau failed to observe that in that

same footnote in the First Report and Order, the Commission

stated that the “on channel option is relevant to the new digital

signals.... Since digital signals are generally new products, there

is no analogous supporting rationale for requiring digital channel

positioning on any channel other than a station’s over-the-air

channel.” PMCM Consolidated Application for Review at 7 (quoting

First Report and Order, 16 FCC Rcd at 2635, para. 81 n.235).

PMCM’s reliance on the language in the First Report and Order

fails to take into account that the Commission subsequently

clarified in the 2008 Declaratory Order that in digital

broadcasting, a station’s channel number is no longer identified by

reference to its over-the-air radio frequency but instead is

identified by reference to its major channel number.

102

PMCM Consolidated Application for Review at 8. See also

PMCM Consolidated Reply at 5-6.

App. 45

Commission stated just the opposite, holding that “[i]n

digital broadcasting, a broadcast station’s channel

number is no longer identified by reference to its overthe-air radio frequency. Instead, in compliance with the

ATSC standard, the station’s ‘major channel number’

is identified in its [PSIP].”103 Moreover, had the

Commission intended to add a new channel placement

option, we think it would have been sufficiently

significant to warrant explicit discussion or

acknowledgement by the Commission given the

practical implications of allowing broadcasters to assert

must-carry rights on one of two different channel

numbers, potentially leading to conflicts between

broadcasters seeking must-carry rights on the same

channel number.104 Thus, if the Commission had

103

104

2008 Declaratory Order, 23 FCC Rcd at 14259, para. 15.

This scenario could arise in any DMA in which a licensee

relinquished its analog RF channel and another licensee elected to

use the relinquished channel for its digital operations. See, e.g.,

Second Periodic Review, 19 FCC.Rcd at 18298 & n.95 (“[I]f a two

in-core licensee elects its DTV channel, then its NTSC [i.e., analog]

channel will be released” and that channel will “become[] available

for future selection by another licensee.”). In this regard, we note

that, as of July 16, 2015, more than 100 broadcast stations had an

RF digital channel number that is the virtual major channel

number of another station operating in the same DMA, or

conversely, had a virtual major channel number that is the RF

digital channel number of another station operating in the same

DMA. A list of these stations is attached as Appendix. This list was

developed by first compiling list of full service TV stations, their

virtual channel numbers, and their DMA assignments using LMS,

CDBS, BIA, and tvnewscheck.com. Then, a list of the stations’ RF

channel numbers as of July 16, 2015 (pre-incentive auction) was

extracted from a snapshot of CDBS. The two lists were compared

to find occurrences where, for two stations in the same DMA, the

App. 46

intended to give broadcasters the choice of demanding

carriage on either their PSIP or RF channel, cable

systems could have been presented with conflicting

demands from two stations requesting the same

channel. Under these circumstances, the Commission

presumably would have explained how to handle

conflicting claims. We also note that the statute refers

to the on-channel option in the singular, stating that a

broadcaster is entitled to demand carriage on “the

channel” on which it broadcasts over the air. However,

nothing in the Commission’s discussion of the onchannel carriage option in the First Report and Order

or the 2008 Declaratory Order indicates that the

Commission intended to add a new option. Accordingly,

we find that the Bureau properly rejected PMCM’s

argument.

B. The Bureau’s Interpretation of “Channel”

Does Not Conflict with Section 614(h)(1)(A)

of the Act

23.

We find no merit in PMCM’s argument that

the Bureau’s interpretation of “channel” for purposes of

the cable channel positioning rules to mean a station’s

PSIP major channel rather than its RF channel

“eviscerates” the must carry rights guaranteed by

Section 614(h)(1)(A) of the Act.105 Section 614(h)(1)(A)

defines a local commercial television station for

virtual major channel number occupied by one station was also the

RF channel occupied by the other station. In some cases, a station

was found to have multiple potential conflicts. These duplicates

were filtered out to develop a list of 194 potentially conflicted

stations.

105

PMCM Consolidated Application for Review at 9.

App. 47

purposes of the must carry provisions as a station

“licensed and operating on a channel regularly

assigned to its community by the Commission that,

with respect to a particular cable system, is within the

same cable television market as the cable system.”106

PMCM states that virtual channels are not the

channels on which stations are “licensed,” nor are they

“assigned to communities.”107 Therefore, PMCM says,

under the Bureau’s interpretation of “channel,”

hundreds of stations would lose their must carry status

because they would not meet Section 614(h)(1)(A)’s

definition of a local commercial television station.108 As

explained above, however, the Commission made clear

in the 2008 Declaratory Order that the term “channel”

refers to the PSIP major channel for the specific

purpose of determining a broadcaster’s channel

position under the on-channel carriage option.109

Further, as discussed above, the Act uses the term

“channel” to mean different things in different

contexts.110 Accordingly, it does not follow that the term

“channel” as used in Section 614(h)(1)(A) of the Act

must also refer to the PSIP major channel.111 Thus, we

106

47 U.S.C. § 614(h)(1)(A).

107

PMCM Consolidated Application for Review at 8.

108

Id. at 9.

109

2008 Declaratory Order, 23 FCC Rcd at 14259, paras. 15-16.

110

See supra note 55.

111

See TWC Opposition at 5 (“The Commission’s decision to treat

a station’s virtual channel number as its ‘over the air’ channel for

purposes of the cable channel positioning rules does not in any way

App. 48

find PMCM’s dire warnings about the “cataclysmic”

effect of the Bureau’s orders to be unfounded.112

C. The Bureau Properly Declined to Address

PMCM’s Spectrum Act Argument

24.

We conclude that the Bureau properly

declined to address PMCM’s argument that a provision

of the Spectrum Act, 47 U.S.C. § 1452(g)(1)(A),

precludes the Commission from involuntarily changing

WJLP’s channel until the Incentive Auction is over and

the repacking process has been finalized.113 PMCM

asserts that WJLP operated on channel 3 with PSIP

require the Commission to treat every other Communications Act

provision or Commission rule that refers to a broadcast station’s

‘channel’ as referring to the station’s virtual channel. Rather,

whether a provision or rule that refers to a broadcast station’s

“channel” is interpreted as referring to the station’s RF channel or

its virtual channel will depend on the context of the reference and

on which interpretation best serves the purpose of the statutory

provision or rule.”).

112

PMCM Consolidated Application for Review at 10.

113

PMCM Consolidated Application for Review at 10-11. 47 U.S.C.

§ 1452(g)(1)(A) provides that during the period prior to the

completion of the Incentive Auction and repacking process:

the Commission may not—(A) involuntarily modify the

spectrum usage rights of a broadcast television licensee or

reassign such a licensee to another television channel

except—(i) in accordance with this section; or (ii) in the

case of a violation by such licensee of the terms of its

license or a specific provision of a statute administered by

the Commission, or a regulation of the Commission

promulgated under any such provision.

Id.

App. 49

major channel 3 for almost five years, until the Bureau

changed its virtual channel to 33.114 According to

PMCM, if its “channel” is deemed to be defined by its

virtual channel, a compelled change from channel 3 to

channel 33 would plainly constitute a change in its

channel in direct violation of the Spectrum Act.115 The

Bureau found in the MO&Os that this argument was

a collateral attack on the Bureau’s PMCM PSIP

Declaratory Ruling and had been raised in PMCM’s

pending application for review of that decision.116 The

Bureau accordingly concluded that this argument was

not appropriately raised in the separate carriage

complaint proceedings.117 PMCM now argues that “it is

the Bureau’s determination that a station’s channel is

its virtual channel rather than its over-the-air channel

that creates the dilemma posed here: if WJLP’s channel

is its virtual channel, then the Bureau has violated the

Spectrum Act since October 2014; if WJLP’s channel is

its RF over-the-air channel, then the Bureau must now

be violating Section 614(b)(6) of the Act.”118 We agree

114

PMCM Consolidated Application for Review at 10-11.

115

Id. at 11.

116

PMCM v. RCN, 31 FCC Rcd at 5228 n.36; PMCM v. SECTV-NJ,

31 FCC Rcd at 5235 n.37; PMCM v. TWC, 31 FCC Rcd at 5241

n.43.

117

PMCM v. RCN, 31 FCC Rcd at 5228 n.36; PMCM v. SECTV-NJ,

31 FCC Rcd at 5235 n.37; PMCM v. TWC, 31 FCC Rcd at 5241

n.43.

118

PMCM Consolidated Application for Review at 12. See also

PMCM Consolidated Reply at 6. Contrary to PMCM’s suggestion

that “it was the Bureau’s determination,” it was the Commission

App. 50

with the Bureau that PMCM’s Spectrum Act argument

is more appropriately addressed in the proceeding

responding to PMCM’s application for review of the

PMCM PSIP Declaratory Ruling, and we are

concurrently addressing PMCM’s argument in that

proceeding.119

D. The Bureau Did Not Err in Deciding

PMCM’s Carriage Complaints on Delegated

Authority

25.

We disagree with PMCM’s assertion that the

Bureau “erred by taking upon itself the authority to

rule in this matter.”120 Sections 0.61 and 0.283 of the

Commission’s rules delegate authority to the Media

Bureau to handle must carry complaints.121 Further, as

discussed above, PMCM’s complaints did not “present

that made the determination in the 2008 Declaratory Order that,

for the specific purpose of determining a broadcaster’s channel

position under the on-channel carriage option, a station’s channel

is the PSIP major channel. See supra para. Error! Reference

source not found..

119

PMCM PSIP MO&O, FCC 17-118, at paras. 21-22. In the PSIP

proceeding, among other things, we reject PMCM’s suggestion that

interpreting the term “channel” as referring to a station’s virtual

channel for the limited purposes of the on-channel carriage option

in Section 614(b)(6) requires the Commission to interpret every

other reference to a broadcast television station’s channel in the

Act and the Commission’s rules as a reference to the station’s

virtual channel rather than its RF channel. Id. at para. 22 (citing

Verizon California, Inc. v. FCC, 555 F.3d 270, 276 (D.C. Cir. 2009).

120

PMCM Consolidated Application for Review at 12.

121

47 CFR §§ 0.61, 0.283.

App. 51

novel questions of law, fact or policy that cannot be

resolved under existing precedents and guidelines.”122

The Commission clarified the channel positioning

rights of digital television stations in its 2008

Declaratory Order, stating that after the digital

transition, a must-carry station’s carriage rights attach

to its PSIP major channel number rather than its RF

channel number.123 The Bureau has applied this

guidance in a number of decisions since that time.124

Accordingly, we find that the Bureau properly

122

Id. § 0.283(c).

123

See supra para. Error! Reference source not found..

124

Gray Television Licensee, LLC v. Zito Media, L.P.,

Memorandum Opinion and Order, 28 FCC Rcd 10780, 10781 n.10

(MB Policy Div. 2013) (“for purposes of digital broadcasting

channel positioning, a station’s over-the-air broadcast channel

number is no longer identified by reference to its over-the-air radio

frequency, but instead to its Major Channel Number as carried in

its PSIP.”); America-CV Station Group, Inc. v. Liberty Cablevision

of Puerto Rico, Inc., Memorandum Opinion and Order, 28 FCC Rcd

29, 33, para. 8 (MB Policy Div. 2013) (finding that a station’s

channel positioning rights attached to channel 42, its PSIP major

channel number, rather than channel 41, its RF channel number);

KSQA, L.L.C. v. Cox Cable Communications, Inc., Memorandum

Opinion and Order, 27 FCC Rcd 13185, 13187, para. 4 (MB Policy

Div. 2012) (stating that “in digital broadcasting for purposes of

channel positioning, a station’s over-the-air broadcast channel

number is no longer identified by reference to its over-the-air radio

frequency, but instead to its Major Channel Number as carried in

its PSIP.”); Ion Media Networks, Inc. v. Charter Communications,

Memorandum Opinion and Order, 24 FCC Rcd 2461, 2468, para.

17 (MB Policy Div. 2009) (stating that “for channel positioning

purposes, the over-the-air channel for a digital station is

determined by reference to the major channel numbers carried in

its PSIP.”).

App. 52

addressed PMCM’s must carry complaints on delegated

authority.

26.

In an attempt to buttress its argument that

its complaints raised novel issues, PMCM argues that

the Spectrum Act was only enacted in 2012 and that

the full Commission has had no occasion to interpret

this statute’s prohibition on changing a station’s

channel during the pendency of the Incentive Auction

proceedings.125 We find this argument unpersuasive. As

we explain above, PMCM’s Spectrum Act argument

relates to the Bureau’s decision in the PMCM PSIP

Declaratory Ruling to assign virtual channel 33 to

WJLP and is being addressed in the context of that

proceeding.126 In any event, our review of the Bureau’s

decision on the merits and our denial of the Application

for Review moot the claim that the Bureau acted

improperly on delegated authority.127

E. PMCM’s Argument that Section 331

Entitles WJLP to Cable Carriage on a VHF

Channel Is Procedurally Barred

27.

We reject PMCM’s argument that WJLP is

entitled to cable carriage on a VHF channel under

125

PMCM Consolidated Application for Review at 12.

126

See supra para. 24.

127

See Murray Energy Corp. v. FERC, 629 F.3d 231, 236 (D.C. Cir.

2011) (agency’s ratification of staff decision resolved any potential

problems with staff’s exercise of delegated authority).

App. 53

Section 331 of the Act.128 Section 331 provides for the

allocation or reallocation of a VHF channel to a

community in a state that did not have a commercial

VHF channel.129 WJLP was reallocated from Ely,

Nevada to Middletown Township, New Jersey in 2013

pursuant to Section 331.130 PMCM contends that the

assignment of a UHF virtual channel number coupled

with the denial of cable carriage on a VHF channel

undermine the intent of Section 331 to make a VHF

channel available to New Jersey.131 As SECTV-NJ

observes, PMCM did not raise this issue in its must

carry complaints filed in January 2016 and raises it for

the first time in its Consolidated Application for

128

PMCM Consolidated Application for Review at 4; PMCM

Consolidated Reply at 7-8.

129

47 U.S.C. § 331(a) (“It shall be the policy of the [FCC] to allocate

channels for very high frequency commercial television

broadcasting in a manner which ensures that not less than one

such channel shall be allocated to each State, if technically

feasible. In any case in which the licensee of a very high frequency

commercial television broadcast station notifies the Commission

to the effect that such licensee will agree to the reallocation of its

channel to a community within a State in which there is allotted

no very high frequency commercial television broadcast channel at

the time of such notification, the Commission shall,

notwithstanding any other provision of law, order such reallocation

....”).

130

Reallocation of Channel 3 from Ely, Nevada to Middletown

Township, New Jersey, Amendment of Section 73.622(i), PostTransition Table of DTV Allotments, Television Broadcast Stations,

Report and Order, 28 FCC Rcd 2825 (MB Vid. Div. 2013).

131

PMCM Consolidated Application for Review at 4; PMCM

Consolidated Reply at 7-8.

App. 54

Review.132 Section 5(c)(5) of the Act and Section 1.115(c)

of the Commission’s rules bar applications for review

that rely “on questions of fact or law upon which the

[designated authority issuing the decision] has been

afforded no opportunity to pass.”133 Thus, since the

Bureau did not have the opportunity to pass on this

argument, it is procedurally barred and we dismiss this

aspect of PMCM’s Consolidated Application for

Review.134

28.

As an alternative and independent basis for

rejecting PMCM’s argument, we conclude that the

Bureau’s assignment of virtual channel 33 to WJLP,

together with its finding that WJLP is not entitled to

cable carriage on channel 3, do not frustrate the

purpose of Section 331. PMCM claims that the clear

intent of Section 331 is “to give underserved states an

identifiable VHF dial position and VHF frequency that

can compete with the major VHF stations in the same

132

SECTV-NJ Opposition at 9.

133

47 U.S.C. § 155(c)(5); 47 CFR § 1.115(c); BDPCS, Inc. v. FCC,

351 F.3d 1177, 1184 (D.C. Cir. 2003) (upholding Commission order

dismissing arguments under Section 1.115(c) because that rule

does not allow the Commission to grant an application for review

if it relies upon arguments that were not presented below).

134

47 U.S.C. § 155(c)(5) (barring applications for review that rely

“on questions of fact or law upon which the [designated authority

issuing the decision] has been afforded no opportunity to pass”); 47

CFR § 1.115(c) (same); BDPCS, Inc. v. FCC, 351 F.3d 1177, 1184

(D.C. Cir. 2003) (upholding Commission dismissal of arguments

not presented below).

App. 55

market.”135 PMCM, however, offers no support in the

statute or legislative history for this claim.

29.

The express purpose of Section 331 is to

“ensure that not less than one [VHF commercial

television broadcasting] channel shall be allocated to

each State, if technically feasible.”136 The statute was

intended to facilitate the allotment of a VHF channel to

New Jersey.137 The Bureau’s finding that WJLP is not

entitled to cable carriage on channel 3 does not

frustrate this purpose because WJLP continues to

broadcast on an RF channel in the VHF spectrum.

Although the statute and legislative history are silent

regarding the rationale for ensuring that all states

have at least one commercial VHF channel, VHF

channels had substantial and well-known technical

advantages over UHF channels at the time.138 As

135

PMCM Consolidated Application for Review at 4 (emphasis in

original). See also PMCM Consolidated Reply at 7 (asserting that

“divorcing WJLP from its fundamental identity as a VHF channel

…effectively reduces the station to a virtual UHF channel in the

public perception”).

136

47 U.S.C. § 331(a).

137

PMCM TV, LLC v. FCC, 701 F.3d 380, 383 (D.C. Cir. 2012)

(PMCM TV v. FCC) (“Congress enacted section 331(a) to solve a

specific problem existing at the time of its passage—the lack of a

commercial VHF station in New Jersey.”).

138

See Reallocation of Channel 2 from Jackson, Wyoming to

Wilmington, Delaware and Reallocation of Channel 3 from Ely,

Nevada to Middletown Township, New Jersey, Memorandum

Opinion and Order, 26 FCC Rcd 13696, 13697, para. 3 (2011);

PMCM PSIP Declaratory Ruling, 30 FCC Rcd at 6099, para. 48 &

n.147.

App. 56

explained in the PMCM PSIP Declaratory Ruling, by

virtue of its operation on RF channel 3 with maximum

effective radiated power at 4 Times Square, WJLP is

the second largest of the 22 full power television

stations in the New York DMA, covering an area of

approximately 34,960 square kilometers and serving a

population of over 21 million.139 In addition, Section

331 expressly refers to “channels for very high

frequency commercial television broadcasting,” which

are defined in the Commission’s rules as the television

channels in the 54-62, 66-72, 76-88, and 174-216 MHz

frequency bands.140 In its 2012 decision finding that the

Commission was required under Section 331 to approve

PMCM’s request for reallocation of RF channel 3 from

Ely, Nevada to Middletown Township, New Jersey, the

D.C. Circuit recognized that Section 331 dealt with

radio frequency spectrum.141 PMCM broadcasts on a

channel in the VHF spectrum band, and the

Commission’s resolution of the cable carriage

complaints does not change this fact or in any way

139

PMCM PSIP Declaratory Ruling, 30 FCC Rcd at 6100, para. 48.

140

47 CFR § 73.603(a) (frequencies for channels 2 through 13);

Improvements to UHF Television Reception, Report and Order, 90

FCC 2d 1121, 1121, para. 1 (1982) (VHF television channels are 2

through 13); Television Assignments, Sixth Report and Order, 41

FCC 148, 153, para. 19 (1952) (Commission has allocated 12 VHF

television channels, 2 through 13, in the 54-216 “megacycle” (i.e.,

MHz) frequency band).

141

PMCM TV v. FCC, 701 F.3d at 384 (finding that PMCM’s

interpretation of section 331 to permit a reallocation even if

interference were to occur made “little sense” in view of “the basic

purpose of the Communications Act—to ensure interference-free

broadcasting ....”).

App. 57

impair PMCM’s use of the VHF spectrum. Accordingly,

we conclude that the Bureau’s finding that WJLP is not

entitled to cable carriage on a VHF channel does not

undermine the intent of Section 331.

F. The Bureau Did Not Violate the Statutory

120-Day Timeline for Resolving Cable

Carriage Disputes

30.

We reject PMCM’s argument that the Bureau

violated the statutory 120-day deadline for resolving

cable carriage disputes set forth in Section 614(d)(3) of

the Act by failing to act on PMCM’s June 6, 2014

demand for cable carriage until May 17, 2016.142

Section 614(d)(3) provides that “[w]ithin 120 days after

the date a complaint is filed, the Commission shall

determine whether the cable operator has met its

obligations under this section.”143 As discussed above,

by letters dated June 6, 2014, PMCM notified

Cablevision, Comcast, and TWC that WJLP would

commence operation in August 2014 as a new television

station in the New York DMA and that it was electing

mandatory carriage of the station’s signal on all cable

systems operated by the MVPDs in the New York DMA

on channel 3.144 The MVPDs subsequently filed letter

requests that the Commission allow them to defer

implementing PMCM’s must-carry request and channel

position election until 90 days after the date of the

142

PMCM Consolidated Application for Review at 1, 13-4; PMCM

Consolidated Reply at 2.

143

47 U.S.C. § 614(d)(3) (emphasis added).

144

See supra para. 4.

App. 58

Bureau’s final decision on WJLP’s PSIP virtual channel

assignment.145 On July 25, 2014, the Bureau released

the Deferral Letter Order waiving Section 76.64(f)(4) of

the Commission’s rules and granting the MVPDs’

requests.146 PMCM argues that it strongly opposed the

MVPDs’ requests for deferral of the carriage mandate,

effectively “complaining” that the MVPDs were asking

to be allowed to evade the mandate, “but the Bureau

effectively tossed out the statutorily fixed timeline”

with its Deferral Letter Order.147 PMCM asserts that

“nothing in the Act permits the Commission or its

delegated authorities to simply place the 120-day

timeline on hold while it looks at some other issues.”148

PMCM asserts that when the Bureau began its review

of PMCM’s must carry complaints in January 2016, it

therefore was already in violation of the statutory 120day deadline.

31.

PMCM appears to be suggesting that the

Commission should have treated its opposition to the

MVPDs’ requests for indefinite extension of the

carriage mandate as a “complaint” subject to the 120-

145

Id.

146

Deferral Letter Order, 29 FCC Rcd at 9105; 47 CFR § 76.64(f)(4)

(requiring that a station’s election of must-carry status take effect

within 90 days of its election).

147

PMCM Consolidated Application for Review at 13; PMCM

Consolidated Reply at 2.

148

PMCM Consolidated Application for Review at 13. See also

PMCM Consolidated Reply at 2.

App. 59

day statutory deadline.149 PMCM, however, cites no

authority to support this position. PMCM’s argument

also ignores the specific procedural framework set forth

in the Act and the Commission’s rules for resolving

cable carriage and channel positioning disputes. Under

this framework, as a condition precedent to filing a

cable carriage complaint with the Commission, a

station is required to provide the cable operator with a

written notification explaining why it believes the

operator has violated its cable carriage or channel

positioning obligations “with the same level of

specificity, raising all issues, as the station would raise

before the Commission if the request should be

denied.”150 The cable operator then has 30 days to

respond and its response must “contain the same level

of specificity, as well as all affirmative defenses, as the

cable operator would raise before the Commission in

defense of a complaint against it.”151 Given the

expedited 120-day timeframe, the station’s notification

and the operator’s response “serve as a primary part of

the pleadings” that inform the Commission’s analysis

in a complaint proceeding.152 At the time PMCM filed

its opposition to the MVPDs’ requests for indefinite

149

PMCM Consolidated Reply at 2.

150

Implementation of the Cable Consumer Protection and

Competition Act of 1992, Broadcast Signal Carriage Issues, Report

and Order, 8 FCC Rcd 2965, 2994, para. 119 (1993) (Broadcast

Signal Carriage Order). See also 47 CFR § 76.61(a).

151

Broadcast Signal Carriage Order, 8 FCC Rcd at 2994, para. 120.